BERFAS v. TOWN OF OYSTER BAY (2001)

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Burke, J.), dated October 16, 2000, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The injured plaintiff (hereinafter the plaintiff) allegedly was injured while riding a bicycle in the defendant Town of Oyster Bay when he hit a rut in the road and was thrown from the bicycle to the ground.   The defendant moved for summary judgment dismissing the complaint, arguing that the plaintiff assumed the risk of encountering all open and obvious conditions in the road and, thus, it was not liable for his injuries.   The Supreme Court properly denied the defendant's motion.

The defendant has failed to establish, as a matter of law, that the action is barred by the doctrine of primary assumption of the risk (see, Turcotte v. Fell, 68 N.Y.2d 432, 437-439, 510 N.Y.S.2d 49, 502 N.E.2d 964;  Weller v. Colleges of Senecas, 217 A.D.2d 280, 635 N.Y.S.2d 990).   The plaintiff was riding a bicycle on a paved road.   He testified at his deposition that he did not recall riding in the area where he fell prior to his accident and, therefore, he was unaware of the defect in the road.   He also testified that the rut was not discernible from any distance before the accident.   Furthermore, the photographs submitted by the defendant in support of the motion failed to establish conclusively that the condition of the road was open and obvious.

Under the particular circumstances of this case, there are issues of fact as to whether the doctrine of primary assumption of the risk is applicable to riding a bicycle on a paved road (cf., Schiavone v. Brinewood Rod & Gun Club, 283 A.D.2d 234, 726 N.Y.S.2d 615;  Calise v. City of New York, 239 A.D.2d 378, 657 N.Y.S.2d 430), and whether the condition of the road was open and obvious (see, Warren v. Town of Hempstead, 246 A.D.2d 536, 537, 667 N.Y.S.2d 389).